There was a good deal of gnashing of teeth just two weeks ago when Google was found to have infringed the patents of Bedrock Computer Technologies, Inc. with respect to caching in Linux. In terms of patent judgments, the award was relatively small, just $5 million. But it still raised issues with respect to other developers and users of Linux, many of whom were engaged in related infringement suits brought by Bedrock.

Well, lo and behold, in the same court in the Eastern District of Texas this week Bedrock lost [PDF] on its infringement claim against Yahoo (related NewsPick), another defendant using exactly the same technology, albeit without executing the Bedrock code.

Now wait a second. A jury says valid and infringed in one case, but in a second case before the same court but a different jury the jury concludes valid but not infringed even though the technology is, for all intents and purposes, identical. Does anyone need a better object lesson in the arbitrary aspects of our patent system when it comes to software?

By the way, some of the other defendants settled either before or immediately after the Google judgment. Bet they are wishing they had waited. Meantime, there may be news in the next day or two with respect to the remaining defendants. Stay tuned.

While we may never know the agreements arrived to settle these suits, these settlements do raise a question about the terms of any agreed license since the software involved, Linux, is under the GPLv2. It is not impossible to get a patent license that is compatible with GPLv2; you only have to turn to the license [PDF] entered between Red Hat and DataTern to resolve that litigation. [You may remember this article on Groklaw at the time explaining this, as well as the article on Red Hat's explanation of the agreement.] As Red Hat explained at the time, they used a series of definitions with the license grant to assure that upstream developers, Red Hat, and all downstream recipients are covered by the license. A really clever bit of license drafting.
While the idea of taking a license may be anathema to many in the free and open source software community, it is simply a cost of doing business for the defendants. The key question is whether they have resolved all claims without compromise with respect to the GPL.